- A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
FA 715 of 2012 against CC 276/2008 on the file of the District Consumer Forum II, Hyderabad.
Between :
Chintan Harish Mehta, S/o Harish Mehta
Aged about 26 years, Indian, Occ: Student
C/o. Chintan Sales, 4A/3B, Bharani Complex,
Minister Road, Secunderabad – 3
Rep. by its GPA Holder Mr. Mahendra R Mehatha …Appellant/complainant
And
1. M/s. Kalpatharu Housing (P) Ltd.,
No.9 & 11, III floor, Krishna towers, T-1
3rd Main Road, Gandhi Nagar,
Bangalore – 560 009, rep.by its
Managing Director, Mr. T.V.Subba Rao
Also at
D.No.5-1-189/190, flat No.13, III floor
Methodist Complex, Opp: Charmas
Abids, Hyderabad – 500 001
2. M/s. Kalpatharu Housing (P) Ltd.,
6-6-74/2, A-block, II Floor
Devi Complex, Behind Petrol Pump
Kavadiguda, Secunderabad -3
Rep. by its Manager, Mr.Chetan Bhatt …. Respondents/ Opposite parties
Counsel for the Appellant`` : M/s. V. Gourisankara rao
Counsel for the Respondents : M/s. Gopi Rajesh & Associates
M/s. L. Srinivas Patel
FA 716 of 2012 against CC 277/2008 on the file of the District Consumer Forum II, Hyderabad.
Between :
Mahendra R Mehatha , S/o Ramakantji Mehta
Aged about 49 years, Indian , Business,
Chintan Harish Mehta, S/o Harish Mehta
C/o. Chintan Sales, 4A/3B, Bharani Complex,
Minister Road, Secunderabad – 3 ..Appellant/complainant
And
1. M/s. Kalpatharu Housing (P) Ltd.,
No.9 & 11, III floor, Krishna towers, T-1
3rd Main Road, Gandhi Nagar,
Bangalore – 560 009, rep.by its
Managing Director, Mr. T.V.Subba Rao
Also at
D.No.5-1-189/190, flat No.13, III floor
Methodist Complex, Opp: Charmas
Abids, Hyderabad – 500 001
2. M/s. Kalpatharu Housing (P) Ltd.,
6-6-74/2, A-block, II Floor
Devi Complex, Behind Petrol Pump
Kavadiguda, Secunderabad -3
Rep. by its Manager, Mr.Chetan Bhatt …. Respondents/ Opposite parties
Counsel for the Appellant`` : M/s. V. Gourisankara Rao
Counsel for the Respondents : M/s. Gopi Rajesh & Associates
M/s. L. Srinivas Patel
FA 717 of 2012 against CC 292/2008 on the file of the District Consumer Forum II, Hyderabad.
Between :
Mohit R. Mehta , S/o Rajendra Mehta
Aged about 20 years, Indian, Occ : Student
Chintan Harish Mehta, S/o Harish Mehta
C/o. Chintan Sales, 4A/3B, Bharani Complex,
Minister Road, Secunderabad – 3
Rep. by its GPA Mahendra R Mehatha ..Appellant/complainant
And
1. M/s. Kalpatharu Housing (P) Ltd.,
No.9 & 11, III floor, Krishna towers, T-1
3rd Main Road, Gandhi Nagar,
Bangalore – 560 009, rep.by its
Managing Director, Mr. T.V.Subba Rao
Also at
D.No.5-1-189/190, flat No.13, III floor
Methodist Complex, Opp: Charmas
Abids, Hyderabad – 500 001
2. M/s. Kalpatharu Housing (P) Ltd.,
6-6-74/2, A-block, II Floor
Devi Complex, Behind Petrol Pump
Kavadiguda, Secunderabad -3
Rep. by its Manager, Mr.Chetan Bhatt …. Respondents/ Opposite parties
Counsel for the Appellant`` : M/s. V. Gourisankara Rao
Counsel for the Respondents : M/s. Gopi Rajesh & Associates
M/s. L. Srinivas Patel
Coram ;
Sri R. Lakshminarasimha Rao… Hon’ble Member
And
Sri T. Ashok Kumar .. Hon’ble Member
Thursday, the Tenth Day of October
Two Thousand Thirteen
Oral Order : ( As per Sri T. Ashok Kumar , Hon’ble Member )
****
1. These appeals are preferred by the complainants in CC 276, CC 277 and CC 292 of 2008on the file of the District Consumer Forum II, Hyderabad against the same opposite parties.
2. Since the complaints filed by the complainants are similar and as common questions of fact and law are involved, we are of the opinion that all these appeals can be disposed of by a common order. FA 715/2012 is taken as lead case. For convenience sake, parties as arrayed in the complaints are referred to here-under.
3. CC 276/2008 relating to FA 715/2012 :
The brief facts of the complaint are that the complainant joined as a Member of “Kalpatharu group of companies ” floated by the opposite parties on their inducement by an offer that whoever books a plot in their venture would get a gold coin, Ray Ban glasses and gift of Diamond necklace . The complainant booked a plot No.165 in the layout of Indra Sai Enclave Devenahalli near Bangalore International Airport, Bangalore and paid 47 instalments regularly and he was declared as a lucky winner in the draw conducted by the opposite parties. As per the terms of the opposite parties the future instalments need not be paid in respect of the said plot. The complainant had paid a total sum of Rs.1,31,500/- out of which the plot value being Rs.94,500/- and stamp duty and registration charges of Rs.37,000/-. A pass book bearing No. 130 was issued by the OPs in favour of the complainant. After receipt of the amount, though the opposite parties promised to register the plot within 45 to 60 days did not do so. Despite that the opposite party No.2 insisted the complainant to resell the plot No.166 and 167 which were registered in favour of Harish Mehatha and Vishal Mehatha to enable them to pay a lumpsum with regard to plot No. 166, 167 and 165 and in this connection the opposite parties have booked Air tickets on 22-10-2007 under Exs.A6 & A7 from Hyderabad to Bangalore for complainant’s father, Brother in law and Uncle to negotiate and settle the matter and when the negotiations failed, the complainant issued a legal notice on 29-10-2007 under Ex.A8 to execute and register the sale deed. The Opposite parties though received the said notice kept quiet and hence the complaint praying to direct the opposite parties to execute and register the sale deed in favour of the complainant in respect of plot No. 165 as allotted or in the alternative to pay the compensation equivalent to the prevailing market value of the said plot and mental agony suffered by the complainant and costs.
4. .OP filed counter opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter are as under :
The complainant has joined in the venture floated by the Ops and paid instalments upto 24-11-2003 and thereafter there was no communication from him from 2004 till the date of issuing legal notice i.,e. for a period of 3 years 3 months and as such the complaint is barred by limitation. The complainant was declared as the lucky winner in the lucky draw conducted by opposite parties in the 47th month. Since the complainant alleged unfair trade practice on the part of the Ops for not developing the lay out,, construction compound wall, water sumps and street lights etc the opposite parties decided to return back the amount and issued a sum of Rs. 1,75,000/- through cheques to Mr. Mahendra R.Mehatha the guardian of complainant. still the OP are ready to refund Rs.1,75,000/- without any interest and thus prayed to dispose of the matter accordingly.
5. Both sides filed evidence affidavit reiterating their respective pleadings and Ex. A-1 to A-10 were marked on behalf of the complainant and Ex. B -1 to B-4 were marked for the OP.
6. Having heard both sides and considering the evidence on record, the District Forum allowed the complaint in part directing the opposite parties to pay Rs.1,75,000/- to the complainant together with interest @ 9% PA from the date of complaint till realization so also compensation of Rs.10,000/- for mental agony and Rs.3,000/- towards costs giving 40 days’ time for compliance.
7. Feeling aggrieved with the said order the complainant filed this appeal on several grounds and mainly contended that out of 55 instalments by 16.6.2001 the complainant paid 47 instalments totaling to Rs.64,500/- and there was due of Rs.34,500/- payable by him to the Ops and that in the 47 the lucky draw held on 16.6.2001 the complainant was declared as draw winner of the plot and therefore he need not pay any further instalments except arrears of Rs.34,500/- , registration charges and BIAPPA charges and that subsequently the complainant paid all the arrears and also registration expenses totaling to Rs.94,500/- up to the date of draw and registration expenses of Rs.25,000/- totaling to Rs.1,32,500/- which includes Rs.37,000/- towards stamp duty, registration and other charges and that even though it was assured that the plot will be registered within 45 to 60 days it was not so done and that OP never whispered that the plot was sold away to the third party and that it is not available for registration in favour of the complainant and on the other hand Ex. A4 and A5 sale deeds in favour of the relatives of the complainant in the same venture were registered and that the District Forum did not consider the said aspects and erroneously directed the Ops to pay Rs.1,75,000/- and the Forum ought to have directed the Ops to execute the sale deed and that Ex. B1 to B3 were created by Ops for the purpose of this case and thus prayed to allow the appeal, set aside the impugned order and consequently allow the complaint as prayed for.
8. Heard the counsel for the appellant and written arguments of OP.1/R1 filed with reference to their respective contentions in detail and no arguments were advanced on behalf of R2.
9. Now the point for consideration is whether the order of the District
Forum is sustainable?
10. In view of the decision of Hon’ble National Commission in Juliet Quadras Vs. Mrs. Malathi reported in 2005 (2) CPR 1 till the amount is refunded or the possession is delivered by a developer, the cause of action would be continuing and the complaint would not be barred by limitation. It is much more so when the Ops agreed to refund Rs.1,75,000/-.
11. Since the office of first opposite party is located at Abids, Hyderabad, part of the transaction had taken place at Hyderabad, so also, for the reason that the complainant is the resident of Minister road, Secunderabad, the Consumer Forum II, Hyderabad has jurisdiction to entertain the complaint though the subject plot is situated at Bangalore.
12. There is no dispute that the complainant became a member in the subject venture floated by the opposite parties to purchase plot. According to the complainant though he was lucky winner in the 47th month lucky draw held on `16.6.2001 he paid Rs.1,31,500/- out of that value of the plot of Rs.1,94,500/- and the stamp duty and registration charges are Rs.37,500/- and that after receipt of the amount Ops promised to register the plot within 45 to 60 days but they never came forward and on the other hand alleged that complainant did not pay the entire amount and that the said acts amount to deficiency in-service and unfair trade practice and hence prayed to direct the Ops to execute registered sale deed in respect of subject plot or else to pay the present market value of the plot so also damages etc. But the District Forum without considering the material on record passed the impugned order and the same is not sustainable and it requires modification. Ex A3 dt. 24.11.2003 issued by Ops disclose that there are no dues with reference to pass book nos.130, 451 and 149 out of which pass book no. 130 pertains to this case and in view of the said letter it was held that without hesitation that the complainant paid 47 instalments and he was declared as plot winner in the 47th instalment and that there are no dues to be paid by the complainant with reference to pass book no. 130. The contention of the opposite party is that since the complainant alleged unfair trade practice on the ground that opposite parties did not develop the lay out, the Ops have decided to pay Rs.1,75,000/- to the complainant through cheques. Ex. B2 letter dt. 30.08.2007 discloses that it was addressed by the complainant to the opposite parties requesting to refund the amount paid by him with reference to pass book no. 130. Contents of the said letter discloses that the complainant paid an amount of Rs.1,19,500/- only towards site cost in respect of site admeasuring 30 X 40’ vide pass book no. 130 and thus requested to refund the site amount paid by him and it is also mentioned in the said letter that the complainant is returning the original sale agreement, pass book and receipts. Ex. B3 receipt discloses that cheques bearing No. 476074, 476075 dt. 20.02.2008 drawn on federal Bank, Gandhinagar branch, Bangalore in favour of Harish Mehta towards refund of site cost in full and final settlement from OP were received and the said documents goes to show that the complainant agreed to receive Rs.1,75,000/- in full and final settlement of the claim. The opposite party contended that the said amounts were not encashed and therefore even now also they are ready to refund the above amount of Rs.1,75,000/- without any interest. The complainant pleaded that the said documents were created for the purpose of this case. One Mahendra R Mehatha, GPA holder of the complainant ( PW. 2 ) filed affidavit denying the receipt of cheques aforesaid for Rs.1,75,000/-.The signature of the said Mahendra R Mehatha on his affidavit does not tally with his purported signatures on Ex. B1 and B2 and possibility of subscribing changed signature on the affidavit cannot be ruled out to defeat the document aforesaid. The said matter requires a detailed enquiry which is not possible in the Consumer Fora where summary procedure is prescribed for. Thus the said aspect is not helpful for both the parties in this case. However, it is true that collecting stamp duty and registration charges much before from the complainant by the Ops amount to deficiency in service. There is no dependable evidence on record to say that subject plot is available for registration. Merely because some plots in the same venture vide Ex. B4 and B5 were registered in favour of others it does not mean that the subject plot is available. For want of development the complainant requested alternatively to direct the Ops to pay present market value of the plot but the complainant did not make out any case for awarding present market value of the plot. The opposite parties did not prefer any cross appeal challenging awarding of the said interest, compensation and costs.. Possibility of the complainant undergoing mental agony for losing the opportunity to own a plot cannot be ruled out. Discussing all the aspects the District Forum rightly ordered for refund of Rs.1,75,00/- with 9% interest P.A. from the date of complaint till realization, so also, Rs.100,00/- towards compensation for mental agony and costs of Rs.3,000/-. In view of the above discussion, the appeal is devoid of merit and is liable to be set aside confirming the impugned order.
13. CC 276/2008 pertaining to FA 716/2012 :
According to the complainant, he paid Rs.1,23,500/- in respect of plot no. 163 under pass book No. 449.
14. CC 292/2008 pertaining to FA 717/2012:
According to the complainant, he paid Rs.1,35,000/- in respect of plot no. 164 under pass book No. 450
- Since the facts of the CC 276/2008 and CC 292/2008 pertaining to FA 716/2012 and FA 717/2012 , the defence, evidence and law are similar with that of the above case, the same discussion holds good for these cases also. Thus all the three appeals are liable to be dismissed confirming the respective orders of the District Forum.
16. In the result, the three appeals i.e. FA 715/2012, FA 716/2012 and FA 717/2012 are dismissed confirming the respective orders of the District Forum. There shall be no order as to costs in these appeals. Time for compliance four weeks from the date of receipt of the orders.
MEMBER MEMBER
DATED : 10.10.2013.
